Local Right to Work Rulings Split Federal Courts, Supreme Court Challenge Possible

Author: Robert S. Teachout, XpertHR Legal Editor

October 10, 2018

The 7th Circuit Court of Appeals has ruled that an Illinois village lacked authority under the National Labor Relations Act (NLRA) to pass a right-to-work law. The decision in International Union of Operating Engineers Local 399 v. Village of Lincolnshire creates a split with the 6th Circuit Court of Appeals and sets up a possible Supreme Court challenge.

In 2015, Lincolnshire, Illinois passed an ordinance prohibiting union security clauses in collective bargaining agreements. A group of unions challenged the law, and a federal district court ruled that the NLRA preempted the ordinance. The Village appealed the ruling, asserting that as a political subdivision of Illinois it could exercise the state's NLRA Section 14(b) power.

Section 14(b) of the NLRA grants states the authority to pass right-to-work laws prohibiting compulsory union membership or the payment of union fees as a condition of employment. Currently, 27 states have right-to-work laws, but Illinois does not.

In affirming the lower court's ruling, the 7th Circuit held that the authority conferred in section 14(b) does not extend to the political subdivisions of states. Permitting such local legislation would threaten a "crazy-quilt of regulation" and create an administrative nightmare the appellate court said, noting that Illinois has over 7,000 local governments.

In 2016, the Cincinnati, Ohio-based 6th Circuit Court of Appeals reached the opposite result in reviewing a Kentucky right-to-work case in UAW v. Hardin County, ruling that municipalities do have the authority to establish right-to-work laws. Kentucky became a right-to-work state the following year.

The Liberty Justice Center, which represented Lincolnshire, said the split between the 6th and 7th Circuits creates the opportunity to appeal the case to the Supreme Court. "We intend to do so," said Diana Rickert, vice president of the organization. The Liberty Justice Center represented former Illinois state worker Mark Janus in the recent Janus v. AFSCME Supreme Court decision, which held that  public-sector unions may no longer collect agency fees from non-union employees who object to paying them.